SAMWU obo Shongwe and Others v Moloi NO and Others (JR483/14) [2019] ZALCJHB 202 (13 August 2019)
The court acknowledged that its findings in paragraphs [38] and [44] of the judgment were contradictory regarding the condonation application. While the ratio of the judgment was to dismiss condonation due to the applicants' dilatory prosecution, the error in paragraph [38] created uncertainty. Given the balance...
Source-derived case information.
- Citation
- [2019] ZALCJHB 202
- Parties
- Applicant: SAMWU obo K Shongwe & 45 Others; Respondent: Commissioner Lucky Moloi (N.O.); Respondent: Commission for Conciliation Mediation and Arbitration; Respondent: The City of Johannesburg
- Court
- Labour Court Johannesburg
- Jurisdiction
- South Africa
- Case Number
- JR483/14
- Procedural Posture
- Leave to Appeal / Application for Leave to Appeal Following Dismissal of Review Application and Condonation.
- Outcome
- Leave to appeal granted against the dismissal of condonation and the review application.
- Judges
- Lagrange
- Legal Topics
- Condonation, Late Filing, Rule 7a8, Review Application, Prospects of Success
Source-derived case record
Summary, issues, holding and outcome
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Parties
SAMWU obo K Shongwe & 45 Others
Applicant
Commissioner Lucky Moloi (N.O.)
Respondent
Commission for Conciliation Mediation and Arbitration
Respondent
The City of Johannesburg
Respondent
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Dismissal of Review Application and Condonation.
Legal Issues
- 1 Whether the court erred in refusing condonation for the late filing of the Rule 7A(8) application.
- 2 Whether contradictory findings in the judgment warrant leave to appeal.
- 3 Whether the balance between the merits of the review and the delay justify granting leave to appeal.
Ratio Decidendi
The court acknowledged that its findings in paragraphs [38] and [44] of the judgment were contradictory regarding the condonation application. While the ratio of the judgment was to dismiss condonation due to the applicants' dilatory prosecution, the error in paragraph [38] created uncertainty. Given the balance between the merits of the review and the delay, the court found that there is a reasonable prospect that another court could reach a different conclusion and therefore granted leave to appeal.
Court Disposition
Leave to appeal granted against the dismissal of condonation and the review application.
Orders
- The applicants are granted leave to appeal against the court’s findings that condonation for the late filing of the Rule 7A(8)(b) notice is dismissed and the review application is dismissed.
- Costs shall be costs in the appeal.
Full Case Text
Judgment text and source record
20 paragraphs
THE LABOUR COURT OF SOUTH AFRICA, HELD AT JOHANNESBURG
case no: JR 483/14
In the matter between:
SAMWU obo K SHONGWE & 45 OTHERS Applicants and COMMISSIONER LUCKY MOLOI (N.O.) First Respondent COMMISSION FOR CONCILIATION MEDIATION AND ARBITRATION Second Respondent THE CITY OF JOHANNESBURG Third Respondent
In Chambers: 07 August 2019
Delivered: 13 August 2019
JUDGMENT ON APPLICATION FOR LEAVE TO APPEAL
LAGRANGE J
[1] The applicants in this application were the applicants in the review application and the respondent was the third respondent in that application.
[2] The applicants claim inter alia that the court erred in refusing to condone the late filing of the Rule 7A(8) application based on the patently contradictory findings in paragraphs [38] and [44] of the judgement. In paragraph [38] the court held that, the effects of leaving the manifestly incorrect ruling of the commissioner intact outweighed the failure of the applicants to provide an explanation for the extraordinary delay, but in paragraph [44] it held that, despite the merits of the review, the dilatory prosecution thereof could not be excused.
[3] Although it is clear the ratio of the court is the second finding on the Rule 7A(8) condonation application, and that it appears paragraph [38] was inserted in error, I accept that this is a case in which the balance between the merits of the review and the other factors to be considered in weighing up the condonation application is such that it there is a reasonable prospect another court could reach a different conclusion.
[4] In the circumstances, the following order is made:
Order
[1] The applicants are granted leave to appeal against the court’s findings that:
1.1 The condonation for the late filing of the Rule 7A(8)(b) notice is dismissed.
1.2 the review application is dismissed.
[2] Costs shall be costs in the appeal
____________________
Lagrange J
Judge of the Labour Court of South Africa